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Arguably the most notable brief filed in the Supreme Court’s big case on affirmative action comes from a pair of lawyers who have just published a book on the subject. The case is Fisher v. Texas, and the coauthors are Richard Sander, who is also an economist, and Stuart Taylor, the legal affairs writer. The argument they press is that “the biggest problem for minorities in higher education is no longer race but rather racial preferences.” If you ask why that is, their answer is “mismatch,” which also serves as the title of their book.

Abigail Fisher

Here, from Mismatch, is how Sander and Taylor explain the concept:

An institution of higher education admits a student using such a large admissions preference that the student “finds herself in a class where she has weaker academic preparation than nearly all of her classmates.” The student, whose test scores and grades in high school indicate she would do fine at, “say, Wake Forest or the University of Richmond, instead finds herself at Duke, where the professors are not teaching at a pace designed for her. Instead they are teaching to the ‘middle’ of the class, introducing terms and concepts at a speed that is challenging even the best-prepared student.”

The student “falls behind from the start and becomes increasingly lost as the professor and her classmates race ahead.” Grades on her first exams put her at the bottom of the class. “Worse, the experience may well induce panic and self-doubt, making learning even harder.”

More by Terry Eastland

Large preferences can be and are used to admit legacy applicants and athletes. Still, it is usually the case, Sander and Taylor write, that large preferences are used to admit minorities​—​mainly African Americans and Hispanics​—​whose academic credentials are significantly lower than those of whites and Asian Americans. There are, of course, minority applicants whose scores and grades are excellent and on that basis alone would gain admission. But substantial numbers are admitted thanks to large preferences. And where such preferences are integral to an admissions policy, mismatching occurs.

Most selective colleges and universities, and most professional schools, use large racial preferences in admissions. And “a striking feature of our system of preferences,” the authors write, “is its tendency to cascade like a row of dominoes.” Elite schools “get their pick of the most academically qualified minorities, most of whom might have been better matched [academically] at a lower-tier school.” And the second tier of schools, “deprived of students who would have been academic matches, must then in turn use preferences to produce a representative student body, and so on down the line.”

Sander and Taylor observe that if the top schools practiced “strict racial neutrality,” then schools in every lower tier would be able to use much smaller preferences, or none at all, to achieve their racial diversity goals. But of course the top schools don’t practice such neutrality, though they do admit the most qualified minorities. As a result, “the cascade effect” multiplies “the scale on which preferences are used and effectively forces second- and third-tier institutions . . . to use larger preferences than do the schools at the very top.” And so it leaves many minorities even more mismatched.

Sander and Taylor accurately describe the system of preferences as it has evolved over the past five decades. And they show, drawing upon data and empirical tests, how the mismatching that results from large preferences, to quote from the book’s subtitle, “hurts students it’s intended to help”​—​students who do have, the authors emphasize, “what it takes to succeed.”

In most cases it’s a matter of where the students are enrolled. If students are mismatched and thus in “academic environments where they feel overwhelmed,” they tend to receive lower grades than if they were not mismatched, to learn less, and to drop out. Strikingly, they also tend to flee more rigorous subjects than would otherwise be the case, and to abandon aspirations to be scientists or scholars.

The Fisher case, the authors correctly observe, doesn’t directly pose the problem of mismatch. Abigail Fisher is a young white woman who was not admitted to the University of Texas and claims that the school’s racially preferential admissions policy unconstitutionally discriminated against rejected applicants from non-preferred groups, like herself. That’s the question before the Court, and it’s been the usual question in challenges like Fisher’s.